DECISION AND ORDER Defendant is charged with Criminal Mischief in the Fourth Degree and the violation of Disorderly Conduct as a result of an incident which allegedly occurred on or about September 10, 2021. By notice of omnibus motion Defendant moves this Court for orders (i) dismissing all charges in the information on speedy trial grounds under CPL §§30.30 [1][b] and 170.30 [1][e]; (ii) precluding the People from introducing at trial any evidence for which they failed to give timely notice; (iii) suppressing evidence of all properly noticed out-of-court identifications of Defendant, or alternatively, holding a Wade hearing; (iv) precluding evidence of any prior bad acts or convictions of Defendant, or alternatively, holding a Sandoval/Ventimiglia hearing; and (iv) reserving the right to make additional motions under CPL §255.20. The People have opposed all branches of Defendant’s motion. Speedy Trial Motion Defendant asserts that the People failed to convert the accusatory instrument to a valid information within the required 90 days pursuant to CPL §30.30 [1][e]. Defendant was arraigned on October 31, 2021. The speedy trial period began to run on November 1, 2021. (People v. Stiles, 70 NY2d 765 [1985]). The People were required to be ready on January 29, 2022.1 The prosecutor filed a superseding accusatory instrument on January 27, 2022, the 88th day after arraignment. The substance of Defendant’s argument is that the superseding accusatory instrument is facially insufficient and its filing failed to toll the speedy trial clock because the named deponent is a male named Detective Domingo Cabreja, but the complaint is signed by the complainant, Leonora Jackson. Additionally, the factual portion of the document is written in the third person female, as follows, in relevant part: Deponent states that…she and defendant engaged in a verbal dispute…she observed…defendant approach a green Jeep Grand Cherokee and use a sharp metal object…causing said tires to deflate and go flat. Deponent further states that she is the lawful custodian of said Jeep and did not give defendant permission or authority to damage said Jeep. Immediately below the factual portion of the accusatory instrument is the following form notice: “False statements made therein are punishable as a class A misdemeanor pursuant to PL §210.45.” Below this notice is a line containing a signature of the complainant, Leonora Jackson, and the date January 27, 2022. Nowhere in the factual portion of the accusatory is the deponent referred to as “he;” nowhere does Detective Domingo Cabrera’s signature appear on the document. The question here is whether the apparent inadvertent error of naming Detective Domingo Cabreja on an accusatory instrument which is otherwise a valid first party information renders the instrument merely an unconverted complaint which must be dismissed. Courts’ facial sufficiency review of an accusatory instrument is limited to the four corners of the document2 and must be fair and not overly restrictive. (People v. Konieczny, 2 NY3d 569, 575 [2004], quoting People v. Casey, 95 NY2d 354, 360 [2000]). The law does not require that the information contain the most precise words or phrases describing the offense(s), only that the crime and the factual basis therefore be sufficiently alleged, give the defendant notice sufficient to prepare a defense and are adequately detailed to prevent the defendant from being tried twice for the same offense. (People v. Kalin, 12 NY3d 225, 230 [2009]; People v. Konieczny, 2 NY3d 569 [2004]; People v. Casey, 95 NY2d 354 [2000]). In People v. Alejandro (70 NY2d 133, 136-137 [1987]), the Court of Appeals reiterated the three statutory conditions for establishing the facial sufficiency of an information. (CPL §100.40 [1]). First, the entire information must substantially conform to the requirements prescribed in CPL §100.15. (Alejandro at 136; CPL §100.40 [1][a]). Second, the factual portion of the information must provide reasonable cause to believe that the defendant committed every element of the offense. (Alejandro at 137; CPL 100.40 §[1][b]). Finally, the factual portion of the information must be supported by non-hearsay allegations of fact which, if true, establish every element of the offense charged. (Alejandro at 137; CPL 100.40 [1] [c]; People v. Williams, 21 Misc 3d 678, 680 [Albany City Ct 2008]; People v. Riviere, 21 Misc 3d 847, 848-50 [Albany County Ct 2008], lv denied, 11 NY3d 929). CPL §100.15 [1] requires that an information must contain an accusatory part and a factual part, must specify the title of the case, the court in which it is pending, and must be “subscribed and verified by a person known as the complainant,” who has knowledge of the charged offenses. The term “subscribe” is defined as the “act of signing one’s name on a document.” (Black’s Law Dictionary [11th ed 2019], subscribe [online version], cited in Riviere, at 849 [additional internal citations omitted]). One prescribed verification method is for the document to “bear a form notice that false statements made therein are punishable by as a class A misdemeanor pursuant to §210.45 of the penal law, and such form notice together with the subscription of the deponent constitute verification of the instrument.” (CPL §100.30 [1] [d]). Significantly, CPL §100.15 [1] expressly provides that the “complainant’s verification of the instrument is deemed to apply only to the factual part thereof and not to the accusatory part.” Thus, if the factual part of the information is supported by non-hearsay allegations meeting the prima facie case standard emphasized in Kalin, the fact that there is residual hearsay in another part of the accusatory instrument is immaterial; the mere presence of hearsay in an accusatory instrument does not render it facially insufficient as an information, nor mean that it is unconverted. (People v. Negron, 49 Misc 3d 392 [Crim Ct NY County 2015]). Nowhere does the CPL prohibit the presence of hearsay in an information. The law simply requires that the particular facts necessary to make out every element of the charges be established by non-hearsay allegations contained in the factual part of the information itself “and/or” any supporting depositions. (Id.). The general thrust of the settled case law is that an accusatory instrument should be evaluated based on its substance and not its label, or other mistake not affecting an element of the crime or the People’s theory of the case. (People v. Dumay, 23 NY3d 518, 523 [2014; Negron, 49 Misc 3d, at 397-398). The inadvertent discrepancy between the stated name of the deponent and the complainant who subscribed and verified that the factual part of the of the information was true based on her personal knowledge does not render this otherwise facially sufficient accusatory instrument invalid. Any person who has first-hand knowledge of the facts of an incident and can truthfully swear that those facts are true based on her personal knowledge, can subscribe and verify a complaint to convert it to an information, even if she is not the informant referred to in the misdemeanor complaint. (CPL §100.20; People v. Pachesa, 50 Misc 3d 238 [Crim Ct NY County 2015]). The incorrect identity of the deponent at the top of the information here does not alter the People’s theory of the case, and is neither an element of the crime, nor a required element of the form of an information prescribed in CPL §100.15 et seq. (Negron, at 397). Therefore, the Court finds, upon a common-sense review of the four corners of the instrument, drawing every reasonable inference favorable to the People, that the complaint here provides non-hearsay allegations of fact which establish a prima facie case that Defendant committed every element of the crimes with which he is charged, as well as sufficient notice to prepare a defense and prevent double jeopardy. The Court further finds that the People converted the instrument, certified their discovery compliance, and declared trial readiness within the 90-day statutory period. Therefore, no further time calculation is necessary. This branch of Defendant’s motion to dismiss the information is denied. Other Motions and Reservation of Rights The People have consented to, and the Court hereby orders, a Rodriquez hearing to be held prior to trial. A Sandoval/Ventimiglia hearing is also ordered and respectfully referred to the trial court for determination. Defendant’s specific demands for Brady material are denied except to the extent that the People are reminded of their statutory and constitutional disclosure obligations. Defendant’s request to file additional motions and to amend and/or supplement his motion is denied subject to the provisions of CPL §255.20 [3]. Conclusion This constitutes the decision and Order of the Court. Dated: April 26, 2022
